Privacy cases: employee's roster  					revealed; legal privilege

Cases

Privacy cases: employee's roster revealed; legal privilege

The two cases here note: a breach of NSW privacy legislation by the NSW Fire Brigades; and the extension of NSW legal privilege to NSW industrial agents.

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The two cases here note: a breach of NSW privacy legislation by the NSW Fire Brigades; and the extension of NSW legal privilege to NSW industrial agents.

NSW privacy legislation breached - employee roster issue

The NSW Privacy and Personal Information Protection Act 1998 was breached when the NSW Fire Brigades disclosed a fireman's roster to another employer who was the principal employer of the part-time fireman.

The NSW Administrative Appeals Tribunal noted that the legislation generally prohibits the disclosure of any personal information by a public sector agency.

The legislation

The basic rule (s 18(1)) is: ‘(1) A public sector agency that holds personal information must not disclose the information to a person (other than the individual to whom the information relates) or other body, whether or not such other person or body is a public sector agency.’

This general prohibition is subject to a number of exceptions, qualifications and modifications.

The Fire Brigades disclosed the fireman's roster to the club where the employee was working and he was consequently dismissed for working as a firemen when he was supposedly on sick leave.

The Tribunal found the employer failed to substantiate an exception under the legislation. The employee had not consented to any disclosure.

The Tribunal's rejected the Fire Brigades' claim that information in a fire station occurrence book is public and not personal information as defined in the legislation.

NW v New South Wales Fire Brigades [2005] NSWADT 73 (1 April 2005)
 
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Industrial agents in NSW can claim professional privilege

The NSW IRC has found that industrial agents in NSW are entitled to have their communications with clients protected from disclosure by the same principles that apply to solicitor-client relationships.

The decision concerned an unfair contracts matter.

Conclusion

The advocate was IR Australia Limited and Justice Schmidt stated:' … I am satisfied that IR Australia Pty Limited was under at the least, an implied obligation not to disclose the contents of the communications between the applicant and it.

The summons is directed to IR Australia Pty Limited. It is the applicant who objects to the production. The time at which the use to which such documents might be put at trial is not now. That can only arise at any hearing, if such evidence is sought to be adduced. (See Odgers, Uniform Evidence Law, 6th Edition at [1.3.11960].) It is that stage that the matters raised in s126B(4) may properly be considered, including questions of relevance to the issues which must be determined in the proceedings.

It follows that I cannot conclude that the summons may be set aside on this basis at this stage of the proceedings. It also follows that any questions of access to the documents which have been produced to the Court and in respect of which the application has been made, must await the trial.'

Michael Wolf v Armstrong Miller and McLaren Pty Limited [2005] NSWIRComm 92 (29 March 2005)
 
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